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November 15, 1963


The opinion of the court was delivered by: DUSEN

These post-trial motions were filed after a finding of guilty had been made as to the above defendants following a trial to the court on an indictment charging 'the defendants, co-conspirators, and other persons to the grand jurors unknown entered into and engaged in a combination and conspiracy to suppress and eliminate competition in the Philadelphia-Trenton area in an unreasonable restraint of the hereinbefore described interstate trade and commerce in economy bread in violation of' 15 U.S.C. ยง 1 *fn1" (par.. 11 of Indictment). Paragraph 12 of the Indictment provides:

'12. The aforesaid combination and conspiracy consisted of a continuing agreement and concert of action among the defendants, co-conspirators, and other persons to the grand jurors unknown to increase, fix, and maintain at all levels of distribution the price of economy bread sold in the Philadelphia-Trenton area.'

 Since the post-trial motions appear to overlook the applicable decisions binding on this court, a general review of such federal decisions will be given before referring to the pertinent evidence in this record.

 A. The Conspiracy

 'A criminal conspiracy is a combination between two or more persons to do an unlawful or criminal act, or to do a lawful act by criminal or unlawful means. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349.' United States v. Perlstein, 126 F.2d 789, 794 (3rd Cir. 1942), cert. den. 316 U.S. 678, 62 S. Ct. 1106, 86 L. Ed. 1752. 'The gist of the offense of conspiracy * * * is agreement *fn2" among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy,' United States v. Falcone, 311 U.S. 205, 210, 61 S. Ct. 204, 207, 85 L. Ed. 128 (1940), but 'An express agreement is not necessary to prove conspiracy.' United States v. Frank, 290 F.2d 195, 196 (3rd Cir. 1961), cert. den. Toomer v. United States, 368 U.S. 821, 82 S. Ct. 38, 7 L. Ed. 2d 26.

 B. Agreement

 'There must be an agreement of some character before there can be a conspiracy. This agreement need not be in writing. It need not be at a meeting attended by all of the alleged conspirators, but there must be express agreements or circumstances which would justify the court in reaching the conclusion that a combination had been formed.' United States v. Griffith Amusement Co., 1 F.R.D. 229, 231 (W.D.Okl.1940). The agreement constituting a conspiracy 'need not be expressed; it may be tacitly understood, and may be inferred from the actions of the alleged conspirators. However, it is still necessary that an agreement be found to exist even though the proof of it may be circumstantial.' United States v. Markowitz, 176 F.Supp. 681, 684 (E.D.Pa.1959). Cf. United States v. Gilboy, 160 F.Supp. 442 (M.D.Pa.1958). 'The appellant contends that the prosecution was premature and instituted before any crime had been committed, because the defendants had not reached any final determination upon a plan which would be a conspiracy within the meaning of the antitrust laws. * * * but the government need not wait until the conspirators have effectuated an actual restraint of trade before it takes action.' Mercer v. United States, 61 F.2d 97, 99 (3rd Cir. 1932).

 C. Knowledge of the agreement or plan

 'No formal agreement is necessary; a tacit understanding is sufficient and it is not essential that each conspirator have knowledge of the details of the conspiracy or the means to be used.' United States v. Weinberg, 129 F.Supp. 514, 524 (M.D.Pa.1955), aff'd. 226 F.2d 161 (3rd Cir. 1955), cert. den. 350 U.S. 933, 76 S. Ct. 305, 100 L. Ed. 815. 'It is not essential that each member of a conspiracy know and come in direct contact with all other members in relation to the conspiracy. Neither is it required that each participate in or have knowledge of all of the operations of the conspiracy. It suffices if a conspiracy is formed and the several persons knowingly contribute their efforts in furthering it.' Berenbeim v. United States, 164 F.2d 679, 684 (10th Cir. 1947), cert. den. Schechter v. United States, 333 U.S. 827, 68 S. Ct. 454, 92 L. Ed. 1113. 'It is not essential that the precise person, time and place or precise methods be agreed upon.' United States v. Gilboy, supra, 160 F.Supp. at p. 453.

 D. Participation

 ' 'A person does not become liable as a conspirator unless he knows of the existence of the conspiracy, agrees to become a party, and with that knowledge commits some act in furtherance thereof. * * * This knowledge and participation may be inferred from the circumstances, acts and conduct of the parties." United States v. Kensil, 195 F.Supp. 115, 119 (E.D.Pa.1961), quoting Jones v. United States, 251 F.2d 288, 293 (10th Cir. 1958). 'Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a 'development and a collocation of circumstances." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1941), rehearing den. 315 U.S. 827, *fn3" 62 S. Ct. 629, 86 L. Ed. 1222.

 E. Evidence of Conspiracy

 As noted above, 'it is not necessary to show any formal agreement among the conspirators. * * * The common plan can be and must often be established by what people do rather than by what they say.' United States v. Georga, 210 F.2d 45, 48 (3rd Cir. 1945). See, also, Interstate Circuit v. United States, 306 U.S. 208, 59 S. Ct. 467, 83 L. Ed. 610 (1939). 'Criminal plottings are spawned in secrecy, and the very nature of conspiracy often precludes proof by direct evidence. For this reason it is an axiomatic principle of law that a conspiracy charge may be sustained on circumstantial evidence alone. * * * Overt acts done in apparent pursuance of a common plan serve as evidence to demonstrate the existence of a conspiracy.' United States v. Migliorino, 238 F.2d 7, 9 (3rd Cir. 1956).

 F. Actions on the plan, responsibility

 'If one has knowledge of the conspiracy and with that knowledge intentionally does some act or thing in furtherance thereof he may be held liable. * * * If so, he adopts as his own the past and future acts of all his conspirators.' United States v. Gilboy, supra, 160 F.Supp. at page 454. 'It is not necessary that all defendants come into it at one time or that they should all know each other, the complete and exact scope of the conspiracy or all of its ramifications * * *; that all contribute alike either to the making of the scheme or its fulfillment. It is enough if at some time during the continuance of the conspiracy there is a common design and purpose applicable to all.' United States v. Gilboy, supra, 160 F.Supp. at page 453. 'It is not necessary that all of the conspirators either meet together or agree simultaneously. * * * It is not necessary that each member of a conspiracy know the exact part which every other participant is playing; nor is it necessary in order to be bound by the acts of his associates that each member of a conspiracy shall know all the other participants therein; nor is it requisite that simultaneous action be had for those who come on later, and cooperate in the common effort to obtain the unlawful results, to become parties thereto and assume responsibility for all that has been done before.' United States v. Empire Hat & Cap Mfg. Co., 47 F.Supp. 395, 400-401 (E.D.Pa.1952). See, also, United States v. Kensil, 195 F.Supp. 115 (E.D.Pa.1961), aff'd. 295 F.2d 489 (3rd Cir. 1961); United States v. Lester, 282 F.2d 750 (3rd Cir. 1960), cert. den. 364 U.S. 937, 81 S. Ct. 385, 5 L. Ed. 2d 368.

 "It was enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in it." William Goldman Theatres v. Loew's Inc., 150 F.2d 738, 743 (3rd Cir. 1945), quoting from Interstate Circuit v. United States, 306 U.S. 208, 225, 59 S. Ct. 467, 83 L. Ed. 610 (1939).

 'Also, the fact that the person plays a lesser or even a minor part in a conspiracy and is not the dominant member of a conspiracy in no way lessens his guilt.' United States v. Nedley, 153 F.Supp. 887, 892 (W.D.Pa. 1957), reversed on other grounds, 255 F.2d 350 (3rd Cir. 1958). 'The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealing or other circumstances as well as in an exchange of words. * * * Where the circumstances are such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.' American Tobacco Co. v. United States, 328 U.S. 781, 809-810, 66 S. Ct. 1125, 1138-1139, 90 L. Ed. 1575 (1946).

 In United States v. Migliorino, 238 F.2d 7, 9 (3rd Cir. 1956), defendant was present during formation of the plan (a stolen car ring). There was no evidence of what he said at that meeting, but later there was an agreement that he was to share in the proceeds of the stolen cars. Defendant was ...

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